[1:55 pm: Bumped up above the other posts on this case.]
I’m blogging today about the Supreme Court’s decision to hear the funeral picketing case. That’s the one in which the jury entered a $10.9 million verdict (reduced by the trial judge to $5 million) against the Phelpsians for their offensive picketing 1000 feet away from a military funeral, and the Fourth Circuit reversed the verdict.
Today’s posts will largely repeat what I said back in 2007, when the original verdict came down; but it’s been a while since then, so I thought revisiting this will be helpful. Since there are lot of doctrines and questions in play here, I’ll try to post separately about several separate aspects of the issue. I should also say up front that I think Phelps’ speech (including both its content and the choice of its time and location) is disgusting. The question, though, is whether particular restrictions on this speech — like restrictions on other disgusting speech — are consistent with the First Amendment.
Let me begin by focusing not on the Phelpsians’ speech, but rather on the laws under which the verdict was entered, starting with the tort of intentional infliction of emotional distress. This tort basically allows recovery when the defendant engages in (1) outrageous speech or conduct that (2) causes severe emotional distress to the plaintiff, and (3) the defendant intends to cause such distress, or is aware of a high probability that the speech or conduct will cause such distress.
It seems to me that this tort, as applied to speech, is unconstitutionally vague and overbroad. If narrowed by courts to cover only conduct and otherwise unprotected speech (such as reckless falsehoods, threats, “fighting words” [more on these later], and other speech that falls within the exceptions to First Amendment protection), it would be permissible. But until it is so narrowed, it is unconstitutional.
The Supreme Court in fact held the tort unconstitutional as to speech on matters of public concern about public figures, in Hustler v. Falwell. But though the Court had no occasion there to discuss such lawsuits brought by private figures (Falwell, the plaintiff, was clearly a public figure), the Court’s reasoning amply applies here:
[I]n the world of debate about public affairs, many things done with motives that are less than admirable are protected by the First Amendment… [E]ven when a speaker or writer is motivated by hatred or ill will his expression [is] protected by the First Amendment ….
If it were possible by laying down a principled standard to separate [outrageous speech] from [protected speech], public discourse would probably suffer little or no harm. But we doubt that there is any such standard, and we are quite sure that the pejorative description “outrageous” does not supply one. “Outrageousness” in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression. An “outrageousness” standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience.
And indeed the Court was absolutely right about the “inherent subjectiveness” of the “outrageousness” standard. I imagine that nearly any jury would find picketing of soldiers’ funerals, with signs such as “Thank God for dead soldiers,” to be outrageous. But the law would potentially cover much more than such speech — and, if upheld under the First Amendment, it would apply even in cases where juries aren’t involved, such as university expulsion decisions under campus speech codes and the like. Say a university bans posting the Mohammed cartoons on the grounds that they are so “outrageous” that they recklessly inflict “severe emotional distress” on Muslim students (who aren’t, of course, public figures). Or say it bans speech that’s harshly critical of race-based affirmative action, and suggests that people admitted under such programs are not adequately qualified to be at the university.
Or say a plaintiff sues a newspaper that published a letter to the editor stating, “We can stop the murders of American soldiers in Iraq by those who seek revenge or to regain their power. Whenever there is an assassination or another atrocity we should proceed to the closest mosque and execute five of the first Muslims we encounter. After all this is a ‘Holy War’ and although such a procedure is not fair or just, it might end the horror. Machiavelli was correct. In war it is more effective to be feared than loved and the end result would be a more equitable solution for both giving us a chance to build a better Iraq for the Iraqis.” (I should stress that I find this view repugnant, but it seems to me that it must be protected by the First Amendment.)
In all these cases, a reasonable factfinder could indeed conclude that the speech is “outrageous” and recklessly inflicts “severe emotional distress” on some private figures. You or I might disagree, but we should expect some government actors, whether jurors or university officials, to take such a view. And if the intentional infliction of emotional distress could apply to such speech, then the speech would be effectively stripped of constitutional protection.
Moreover, allowing the punishment of speech under such a vague standard would deter even more speech than would actually be punished. As the Court held in Grayned v. City of Rockford (paragraph breaks added),
Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning.
Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.
Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms.” Uncertain meanings inevitably lead citizens to “‘steer far wider of the unlawful zone’ … than if the boundaries of the forbidden areas were clearly marked.”
All these problems — especially the deterrent effect (“Third”) — are implicated by the vague “outrageousness” standard.
Seel also these other posts on (1) the overbreadth doctrine (which explains why I’m looking at the tort generally and not just at the tort as applied in this case), (2) invasion of privacy, (3) fighting words, (4) the residential picketing analogy, (5) jury discretion and viewpoint discrimination, (6) state action, and (7) slippery slope risks.
Cooley Howarth says:
You might want to edit the second element of the severe emotional distress tort in para 3; I think you mean “causes…distress to the plaintiff.”
[Whoops, fixed, thanks! -EV]
March 8, 2010, 12:59 pmSoronel Haetir says:
I am a bit surprised they took this case given that the CoA appears to have done everything right. Is there some issue I’m missing? Perhaps they just wanted an easy high profile case.
March 8, 2010, 1:20 pmRoscoe says:
I am not a First Amendment guy, and so I hesitate to step in here. Nonetheless, I disagree with the Professor.
First, at bottom this lawsuit wasn’t about speech. The Phelpsians weren’t attempting to communicate anything, really. Instead, their apparent goal was to be as outrageous as they could. And I doubt that the plaintiff’s main goal was attempting to prove Phelps wrong about God hating homosexuals. Rather, the lawsuit and judgment were based on the facts that (2) the Phelpsians’ conduct was outrageous and (2) their outrageous conduct reasonably caused intentional distress under well established state tort law.
Second, I think it is important to note that a private plaintiff, and not the government, is the aggrieved party. As such,the “state action” here is minimal, pretty much limited to enforcing a judgment. So this case can be distinguished pretty readily from a criminal prosecution for outrageous speech, or a state university expulsion on “hate speech” grounds.
Third, I think it is also important that the plaintiff is not a public figure. This tends to reduce (although I admit not eliminate) the risk that people will use IIED laws to silence people with whom they disagree. If the plaintiff has not made previous forays into the public forum, it is most likely that his or her motive is either (1) actual outrage over the defendant’s conduct, or (2) money.
Finally, if the lawsuits are limited to private suits by non public figures, I don’t foresee a rash of such suits. Lawsuits are expensive, and with no hard damages it will be hard to attract a plaintiffs’ lawyer willing to take such cases on a contingency.
March 8, 2010, 1:56 pmEC2 says:
In law school, I published a note arguing for a “newsworthiness” defense to speech-based intentional infliction of emotional distress (“IIED”) claims. Such a defense is available to the public disclosure of private facts tort, which focuses on whether a given disclosure would be “highly offensive” (as opposed to whether the speech in question was outrageous).
“As the Court in Falwell saw the need to borrow a principle of defamation law to address the First Amendment threat presented by a public figure’s IIED claim, so too should courts today borrow a principle from the field of privacy law to address the First Amendment threat presented by the burgeoning numbers of IIED claims being adjudicated under an unconstitutionally vague standard.”
Terror, Tort, and the First Amendment: Hatfill v. New York Times and Media Liability for Intentional Infliction of Emotional Distress, 72 Brook. L. Rev. 237, 276 (2006).
March 8, 2010, 4:34 pmSuperSkeptic says:
I imagine that the Court somehow misses this “inherent subjectiveness” aspect when discussing the “fighting words” standard.
March 8, 2010, 4:45 pmHudson Hornet says:
I want to put aside the question of first amendment doctrine for a moment and just look at what is going on here and the value of this speech. The courts have made plenty of exceptions to first amendment doctrine when they recognize in the broadest terms that the value of the speech is not worth the cost. Fighting words, obscenity and libel are just three examples of this.
What is missing here is a recognition that the point of the protest was not really to say anything, it was to disrupt. The vehicle of the disruption was to say the craziest thing possible at a sensitive place and time, but the content of the speech was not important except as a vehicle to cause disruption and distress. That should give us some comfort that the slippery slope is not all that dangerous a slope to slide down. After all, if Phelps really wanted to make a point about gays or policy toward gays, a funeral of a soldier whom he did not believe was gay, who may or may not have supported gay rights policies and who had little or no influence on the development of gay rights policies is a curious place to stage a protest. So this is not quite the situation that took place at abortion clinics where there was an obvious connection between the location of the protest, the content of the protests and the object of the protests.
I continue to believe that this situation can be dealt with by some application of the time/place/manner doctrine, or perhaps by a hybrid of that doctrine and the fighting words doctrine. To take the mohammed cartoon example, it is one thing to say that a person should not be punished for drawing a mohammed cartoon. Few people in the U.S. would disagree with that. It is another to say that they should be allowed to bum rush a mosque while doing so. The point of the latter is not to debate the nature of mohammed or to state an opinion about freedom of speech, it is to annoy and disrupt. Our society really has nothing to gain by allowing this kind of speech-for-the-sake-of-disruption and nothing to lose by prohibiting it.
March 9, 2010, 2:21 amNetsol Blogs » Blog Archive » First Amendment Case to Test Limits of Taste says:
[...] A very good discussion of the case is posted by Prof. Eugene Volokh http://volokh.com/2010/03/08/the-intentional-infliction-of-emotional-distress-tort-and-the-freedom-o... [...]
March 10, 2010, 3:57 pm